Book Reviews

This presupposes a traditionally lib eral, if not a libertarian, spirit, and in all candor Mr. Morgan, on the last page of his book, warns his readers that a "society without a rights in dustry is just as uncomfortable to contemplate as a society without policemen." It's all a question of balance, how ever, and Richard Morgan, no ideo logue, has felt constrained to come down on the side of common sense. He takes it seriously that we live un574 der a Constitution whose words, if accepted in an ordinary dictionary sense, guarantee both the rights of individuals and of the society as a whole. In short, Richard Morgan is no extremist. But there are thou sands in his own legal profession who are making a good thing of what he calls the "rights industry." The "new class" of interest group publicists and advocates, activist lawyers and New Day liberal law teachers has, as he puts it, "run amok."

Going amok happens to be good for the incomes of activist lawyers, but Richard Morgan does not questioll the sincerity of the rights industry. In his kindly opinion the activists DC longer see the forest for the trees They can't read the First Amend ment correctly. And they twist thE civil rights legislation, and such Su DISABLING AMERICA 575 pre me Court rulings as Brown vs. Board of Education, into some very strange shapes. Morgan sums up the disruptive aims of the rights activists under five headings. Number one, they are doing their best to isolate the churches. Two, they are disabling the public schools. Three, they are en feebling law enforcement all across the board. Four, they make it im possible to maintain old-fashioned order in areas that were formerly protected by such traditional groups as the family and the private asso ciation. And five, they insist on pre empting private choice.

Common Sense Rights What all this means is that people who consider themselves good lib ertarians are actually bent on de priving a big majority of citizens of their common sense rights. People who are religious find themselves at a disadvantage against those with no religion at all. The so-called sec ular humanists get free transporta tion to school and free laboratory equipment (for payment of taxes, of course). But if the Catholics or Meth odists ask for their share of educa tional tax money for bus service or such laboratory equipment as Bun sen burners, which have nothing to do with the possible establishment of religion, they get a rude turn down. Richard Morgan considers such discrimination to be an actual in fringement of the First Amendment, which says nothing about depriving any group of state aid to education. The only thing prohibitive in the re ligious section of the First Amend ment is the statement that the gov ernment shall not establish a na tional church. Paying for Bunsen burners mayor may not be a good use of tax money for anybody (true libertarians would be against it as part of their animus against public schools), but it surely can't be equated with the establishment of a national religion.

The Supreme Court majority, in Brown us. Board of Education, sim ply decreed that de jure segregation in the public schools was an in fringement of equal rights. The only thing required by the Supreme Court decision was that anybody, no mat ter what his or her color, could prop erly demand sitting room in what ever public schools the neighborhood provided. But the rights industry ac tivists twisted the Supreme Court's words around to support the "affir mative action" of busing to achieve quota representations of blacks in all schools, regardless of the neighbor hood distribution of population. Activist judges all across the land prescribed forced busing. The dis traction of long-distance rides re sulted in worse, not better, educa tion for both blacks and whites. Meanwhile, the rights industry ac576 THE FREEMAN tivists were busy taking disciplinary authority away from teachers gen erally. The busing troubles were piled on top of "blackboard jungle"

conditions that made teaching a haz ardous profession anyway. In the matter of law enforcement, the Miranda case did for the cops what the no-summary-punishment rule had done for the teachers. Vol untary confessions of criminal activ ity were ruled inadmissible as evi dence in court if they were made without due warning by the police that the Fifth Amendment guaran teed a right to silence. Richard Mor gan is no supporter of third-degree torture to extract confessions, but he considers it a stupid departure from ancient wisdom if believable confes sions made in a voluntary manner without the Fifth Amendment warn ings or presence of a lawyer can't be read to juries. Morgan finds that traditional or der in society can't be maintained when judges make their personal predilections the foundation of their decisions. He quotes Judge Robert Bork, formerly of the Yale Law School, approvingly. With law school teachers advocating what amounts to avoidance of the Constitution as traditionally interpreted, there will * * occur, so Bork says, "the gentrifica tion of the Constitution .... Non interpretation leads a judge to find constitutional values within himself ... the values which might loosely be described as characteristic of the university-educated upper middle class will be those that are imposed."

The rights industry intellectuals frequently quote James Madison and Thomas Jefferson to sustain their at titudes. But Richard Morgan cau tions the overzealous "new class" radicals to study the behavior of both Madison and Jefferson when they were in the White House. Jefferson, as President, signed into law acts of Congress "providing federal land grants to a religious body for 'prop agating the Gospel among the heathen' (native Americans)." He also approved the use of federal money to support a Catholic priest in his priestly duties among the In dians. Madison, as President, issued four Thanksgiving proclamations. As a member of Congress he had sat in a committee that recommended the chaplain system. Regardless oj their personal prejudices, neitheI Madison nor Jefferson demanded to· tal separation of government and religion. (I * the Freeman VOL. 35, NO. 10 • OCTOBER 1985 Something BetterA Page on Freedom, No. 24 Brian Summers 579 Individual free choice is the essence of the market.